This article is part 3 of a discussion on the Halachos relating to elections for community officials and governing bodies and their empowerment to make decisions.
Are all decisions made by the elected governors binding on the community?
Once elected, do the custodians have unlimited powers to make binding decisions on behalf of the community? What happens if the majority of the community disagree with a decision made by the elected board?
We find two divergent views amongst the Rishonim and Poskim on this issue.
The Ravia”h
writes that every communal decision is subject to the consent of the community members. However, the default presumption is that the community would support the decisions of the officials that they elected, until such time as they verbally protest. But should the majority of the community dispute the decision made by the elected trustees, the decision should not be binding against the will of the community.
He argues; what difference does it make whether they (the community) accept the authority (of the custodians) at the outset (i.e. at the point of elections) or at the end (i.e. when the decisions are actually made)? He maintains that the community always has the ability to retract its vote for the governors and thereby withdraw their empowerment to make decisions that go against the will of the community.
Others argue that this approach effectively disempowers the elected governors and their functioning is “merely like the actions of monkeys” i.e. having no authority. Rather, since the custodians are elected by and through this, are invested with the Koach of the majority, they themselves are considered as the majority, and all of their decisions are binding irrespective of any protest.
The Mabi”t
takes a middle position, making a distinction between “ordinary” and “extraordinary” business. The custodians have full and sole-authority in decisions which are considered standard and ordinary business. This is because at the time of election, the voters understood that the governors that they elect would be making these decisions. Therefore by voting for them, the community consents to this empowerment.
However when it comes to “extraordinary” decisions, the elected governors are not able to make binding decisions on their own. This is because it could be argued that the governors’ authority was not accepted and conferred by the community in relation to these types of matters. Accordingly, all extraordinary business that is beyond the day-to-day decisions, must be put to a majority vote of the community.
Can positions be passed down to family members?
Concerning the Jewish king the Torah says למען יאריך ימים על ממלכתו הוא ובניו בקרב ישראל, “in order that the days of his kingship be extended, for him and his descendants amongst the Jewish people”.
From this verse our sages learn that on the death of a king, his son will inherit the position, as long as he is capable and possesses the necessary skills and character traits to serve as king. This applies even if there are better candidates.
By the inclusionary phrase בקרב ישראל, the Sifri derives that this applies not only kingship but to all other positions of leadership. This brought as Halocha by the Rambam.
However, all of this is where there is no protocol or custom or a limited contract. If someone is elected or employed to a position of authority for a specific term, there is no Chazaka right to the position and at the end of the term they are required to stand down. Certainly according to this the position will not be transferable to their children or other chosen person. Replacing a deceased community governor would require a new election.
Removing an elected official
Within the term for which they were elected, officials may not be removed, unless there is a clear and strong reason to do so, such as gross misconduct or gross negligence. To do so otherwise would be forbidden as it would cause “Chashad” (wrongful suspicion) on the individual and, if the position is paid, would be wrongfully depriving them of their Parnasa.
Can the custodians co-opt other members?
According to the Rosh the elected governors are empowered in all of their decisions, including the right to co-opt other custodians. Others write that they may not add more custodians, since unlike the elected custodians, the co-opted members do not have the express empowerment of the community. Presumably non-voting members would be acceptable. Creating sub-committees whose decisions need to be approved by the elected governors, would also be acceptable.
If there is established custom or by-laws that allow the co-opting of further custodians with voting power, they may do so. This is because it was understood by the community members when they voted for the original custodians that they would have the right to co-opt other members.
An extension of this dispute is the scenario or the death or resignation of a member. The Rosh requires a new election to replace. Until the position is filled, no decisions can may be made.
The Rashba writes that the absence of 1 member should not shut down the board. Otherwise, if even one member was to go away or be absent for a few days, would we say that the entire authority of the board is removed? He argues that such a scenario is obviously not what the community would wish to happen (Daas Hatzibbur).
Conclusion
These are just some of the Halachos and Torah guidelines for some of the issues relating to communal structures, governance, the election of communal officials and their decision making authority.
The underlying reasons for having elected officials is to enable communities to grow and thrive efficiently, for the will and needs of the members to be represented and catered to, and to ensure peace and harmony even though each member may have different opinions and views.
- Quoted by the Mordechai Bava Basra 482
- Maharshdam Y.D. 227
- Teshuvos 1:84
- Devarim 17:20
- Sifri Parshas Shoftim
- Hilchos Melochim 5:7
- Shach YD 257:4
- Teshuvos 3:297
